Ulloa v G M Holden Ltd and VWA
[2011] VCC 1447
•12 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05656
| OSCAR ANTONIO ULLOA | Plaintiff |
| v | |
| G M HOLDEN LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 December 2011 |
| DATE OF JUDGMENT: | 12 December 2011 |
| CASE MAY BE CITED AS: | Ulloa v G M Holden Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1447 |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – Damages
CATCHWORDS – Serious injury - thoracic and lumbar spine injury – pain and suffering –
loss of earning capacity – relevant principles – whether “serious injury”.
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 62;
JUDGMENT – Leave granted for pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R P Gorton QC with | Valos Lawyers |
| Mr N B Chamings | ||
| For the Defendants | Mr D Myers | Lander &Rogers |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 6 December 2010, by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the first defendant. The plaintiff alleged that the injury to the thoracic and lumbar spine occurred on or about 6 September 2004.
2 The plaintiff seeks leave to bring proceedings for pain and suffering and loss of earning capacity damages.
3 The body function which the plaintiff says has been lost or impaired is the thoracic spine and the lumbar spine.
4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • The plaintiff tendered Exhibit A, the Plaintiff’s Court Book, pages 6-12, 21-36, 43-46, 67, 70, 104-118, 125 to 136, and 140; • The defendants tendered Exhibit 1, the Defendants’ Court Book, pages 14-28; and Exhibit 2, described as Heart West report dated 13 September 2006, Centrelink medical certificate dated 17 January 2007 and imaging of the plaintiff’s left shoulder dated 15 January 2007. 5 Mr Myers, on behalf of the defendants, identified that the issue in respect to pain and suffering was that this is a “range” case. Mr Myers conceded that the plaintiff was injured in a fall at work on 6 September 2004 but the crush fracture to the thoracic spine was not as a result of that fall. The first defendant also contended that the plaintiff was unable to obtain employment after the injury due to other unrelated medical conditions to do with heart disease, diabetes and a left shoulder injury.
6 Mr Myers, on behalf of the defendants, stated that the credit of the plaintiff was not in issue.[1] The first defendant also conceded that causation in respect of the alleged injury to the plaintiff’s back was not in dispute.
[1] T 33, L20-25
The Statutory Scheme
7 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[2]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[3]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38). I have applied the principles set forth therein in reaching my conclusions in this application.
[2] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[3] Barwon Spinners, at paragraph 33
9 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
10 The plaintiff was born in Chile on 5 March 1948. He is now sixty-three years old. He is a married man and lives in St Albans with his wife. They have an adult son.[4]
[4] PCB 6
11 The plaintiff migrated to Australia in 1985. In Chile, the plaintiff had been educated up to our equivalent of Year 9. He then became a chef.
12 On arrival to Australia, the plaintiff originally worked at the Southern Cross Hotel and Regent Hotel in Melbourne as a kitchen hand. In 1987, he commenced employment at the first defendant’s premises as a kitchen hand. On 3 August 1989, the plaintiff commenced as a maintenance worker and painter with G M Holden Ltd (“Holden”).[5]
[5] PCB 6
13 Following the termination of his employment with the defendant on 3 December 2004, the plaintiff has only worked for a six-week period at a cheese factory in Coburg in 2005. He ceased that employment because the work was too heavy. He has not worked since.[6]
[6] PCB 7
The Injury with the First Defendant
14 The plaintiff had worked as a painter and/or maintenance worker with Holden from 1989. He was required to do painting and maintenance work at the first defendant’s premises.
15 The plaintiff best describes the manner in which he was injured as follows:
“On or about 6 September, 2004, I was injured whilst at work. On this day I was performing painting work and was standing on scaffolding attempting to move a heavy metal cabinet away from the wall with assistance. As I was doing this I slipped backwards falling approximately 1.6 metres onto the concrete onto my back.”[7]
[7] PCB 7 paragraph 8
16 The plaintiff described the fall as being heavy and that he was shaken and stunned by the impact with the concrete floor.[8]
[8] PCB 7 paragraph 9
17 The first defendant concedes that the plaintiff was injured on 6 September 2004. The issue in this application is the consequences suffered by the plaintiff as a result of the injury at work on 6 September 2004.
The Plaintiff’s Medical Treatment
18 The plaintiff was transported from the place of injury at the first defendant’s premises to the medical centre at Holden. An ambulance was used for that purpose.[9] The plaintiff was examined by Dr Chan, the work doctor. Dr Chan organised for an x-ray of the plaintiff’s lumbosacral spine.[10]
[9] PCB 120 and DCB 20
[10] PCB 122
19 After treatment at the Holden medical clinic, the plaintiff was sent home in a taxi. He was off work for approximately one month.[11]
[11] PCB 7
20 On 8 September 2004, the plaintiff attended Dr Woodard, general practitioner. Dr Woodard noted that the plaintiff had been prescribed anti-inflammatories and Panadeine Forte by the Holden Medical Centre. On examination, Dr Woodard noted the plaintiff was tender in the mid-line of his lower back at L4- S1 level. Dr Woodard certified him unfit for work for one week.[12]
[12] PCB 135A
21 Dr Woodard saw the plaintiff on 13, 22 and 30 September 2004. By the last visit, the plaintiff’s back had improved to the extent that he was certified fit to return to work.
22 The plaintiff returned to Dr Woodard on 11 August 2005, complaining of back pain. It was not clear from the evidence, but this would coincide with the approximate time the plaintiff ceased working at the cheese factory.
23 The plaintiff has also consulted Dr Luz Conejera. In her report, Dr Conejera states that while she has had investigations done by a radiologist to the plaintiff’s back, she was never aware that any injury to the back was associated with his work.[13] Dr Conejera arranged for a thoracic and lumbar spine x-ray of the plaintiff which was performed on 12 September 2000.[14] This x-ray is some four years prior to the accident, the subject of this application. The radiologist’s report is as follows:
“Thoracic and lumbar spine.
The vertebral alignment appears normal. There are degenerative changes with osteophytes at multiple levels in the lumbar and mid and lower thoracic spine. The thoracic and lumbar disc space heights appear normal with no other bony abnormality seen. Both sacroiliac joints appear normal.”[15]
[13] PCB 113
[14] PCB 115
[15] PCB 115
24 As previously noted, Dr J Chan, from the Holden Medical Centre, arranged for an x-ray of the plaintiff’s back immediately after the accident. It was reported as follows:
“Lumbosacral Spine:
Osteophytic lipping has occurred at all lumbar levels and with minimal disc space narrowing. The vertebral bodies are of normal height.
Some degenerative changes are present at the L4/5 and L5/S1 facet joints.”[16]
[16] PCB 122
25 On 3 December 2007, Dr Conejera ordered a full x-ray of the whole spine. Her conclusions are noted as follows:
“1 Mild cervical, mild to moderate thoracic and lumbar spondylosis. 2 >20% loss of vertebral body height of T7 and T12 levels is identified. If there is a concern of osteoporosis, DEXA can be performed for further assessment.
3 Disc space narrowing at L5/S1 level is demonstrated. If there is a concern of disc prolapse, CT examination of the lumbar spine can be performed for further assessment.
4 No destructive bony change is demonstrated.
5 Prominent transverse processes of C7. Moderate left C5/6 and C6/7 level foraminal stenosis are noted in particularly.”[17]
[17] PCB 116
26 The general practitioner, Dr Conejera, then ordered a CT scan of the lumbosacral spine. This radiological examination took place on 5 December 2007. The conclusions of that report were as follows:
“Marked narrowing of the right L5-S1 intervertebral foramen due to disc bulge and facet joint arthritis. Narrowed lateral recess. Probable impingement or irritation on the existing right L5 or traversing right S1 nerve roots. This may be further assessed with MRI of the spine if required.”[18]
[18] PCB 117
27 The final radiology examination of the plaintiff was performed on 26 May 2008. The conclusion of that report states that:
“The appearances of the previously noted abnormal lower thoracic vertebra which now proves to be T11 are consistent with an old crush fracture with approximately 30% loss of vertebral body height.”[19]
[19] PCB 106
28 A copy of the MRI scan said to be performed on 7 May 2008 and referred to in Professor Brand’s report dated 27 June 2009, was not attached to that report. Consequently, there is no MRI reporting on the lumbosacral part of the plaintiff’s spine.
29 The plaintiff has not been under the care of any specialist practitioners, either orthopaedic surgeons or pain management specialists. The plaintiff’s ongoing medical management and treatment has been undertaken by the general practitioner, Dr Luz Conejera. Dr Conejera has prescribed Panadeine Forte tablets and Pariet tablets to control the stomach upset caused by the Panadeine Forte.
30 The plaintiff undertakes exercises that he had been taught to maintain his flexibility and arms and leg use. He also performs swimming pool exercises to relieve his pain symptoms. His evidence is that he does this approximately three times per week.[20]
[20] PCB 11
The Medical Opinions
Dr Luz Conejera, General Practitioner
31 Dr Luz Conejera is the general practitioner who has treated the plaintiff since 1995. Unusually for a general practitioner, Dr Conejera is not highly supportive of the plaintiff’s application in this matter. Dr Conejera states that the plaintiff has complained of back pain but he never advised her that it was a work related injury which caused that pain. Interestingly, Dr Conejera notes that she could not see WorkCover cases because of lack of time when she was a solo doctor. Dr Conejera stated that the plaintiff should have told her it was a WorkCover related complaint.
32 In her opinion, the plaintiff’s back pain is consistent with a person of his age. Dr Conejera went on to say that there was a variety of health allied professionals available for treating the plaintiff if he should need such treatment under the Medicare program. I note that Professor Brand, in his report dated 27 June 2009, advised the plaintiff to continue with physiotherapy and medication treatment.[21] In any event, Dr Conejera has been responsible for sending the plaintiff off to numerous radiological investigations for his back pain. These radiological examinations have been previously referred to in these reasons.
[21] PCB 107
33 Dr Conejera treats the plaintiff by prescribing medication of Panadeine Forte and Pariet tablets for control of the stomach upset as a result of the Panadeine Forte tablets. In summary, Dr Conejera is treating the plaintiff for back pain by prescribing medication.
Mr Paul Steedman, Orthopaedic Surgeon
34 Mr Steedman prepared two reports, in relation to this matter, dated 12 August 2008 and 11 October 2011 respectively. Mr Steedman, in his first report, notes that the diagnosis for the plaintiff is degenerative changes for the whole of the spine. He noted the compression fractures at T7 and T12. Mr Steedman was of the opinion that the plaintiff would require anti-inflammatory and analgesic tablets from time to time but no active medical treatment was appropriate. In Mr Steedman’s opinion, the injuries did relate to his employment but he could not be certain that the two fractures referred to at the T7 and T12 were caused by the accident.[22]
[22] PCB 105
35 In the later report, Mr Steedman noted that the plaintiff was not having any active treatment. He noted that the plaintiff attended the pool two to three times per week. The plaintiff’s only medication was Panadeine Forte tablets, one or two per day. In Mr Steedman’s opinion, the plaintiff’s current condition was:
“… that he still has spinal problems in the neck and thoraco-lumbar
regions but particularly in the thoraco-lumbar regions.
…
I would consider that he has suffered a permanent serious impairment of loss of body function.
I feel sure that he has no capacity for return to work currently or in the foreseeable future.”[23]
[23] PCB 109
36 In summary, Mr Steedman was of the opinion that the plaintiff was permanently disabled as a result of the injury to his thoracolumbar spine.
Professor Ian Brand
37 Professor Brand prepared two reports in respect of this application dated 27 June 2009 and 15 October 2011. In his first report, Professor Brand had reviewed the MRI scan reports for 7 May 2008 and 26 May 2008. Professor Brand noted as follows:
“He denied any tingling/numbness/weakness/parasthesia. He did not want surgery and was happy with the present medication and exercise programs. He was advised to continue with the physiotherapy and medication and return for a review in six months’ time.”[24]
[24] PCB 111, 112
38 In the later report dated 15 October 2011, Professor Brand noted the examination of the neurosurgeon, Gautam Khurana, who examined the plaintiff on 3 November 2010. It was the surgeon’s opinion that no acute surgical intervention was indicated at that time. The surgeon recommended that the local medical officer refer the plaintiff to physiotherapy in order to assist in core muscle strengthening exercises. Professor Brand stated that he was not in a position to say whether or not the plaintiff had a work capacity either at the present or in the future.[25]
Dr Stephen Stern
[25] PCB 111, 112
39 The defendants’ solicitors sent the plaintiff to Dr Stephen Stern, psychiatrist, for examination and report. Dr Stern took a history from the plaintiff that he had constant pain in his mid back and recurrent pain in his low back. He stated that the plaintiff complained that his sleep was disturbed by pain.[26]
[26] DCB 15
40 Dr Stern diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. It is to be noted that this application by the plaintiff is not a claim for psychiatric injury. Dr Stern’s evidence serves the purpose of eliminating any claim by the plaintiff that he is suffering a severe mental or permanent severe behavioural disturbance or disorder.
Mr John O’Brien
41 The defendants’ solicitors referred the plaintiff to Mr John O’Brien, orthopaedic surgeon, for examination and report. This examination took place on 20 October 2008.[27] In relation to the history of treatment at the time of that examination, Mr O’Brien noted:
“Mr Ulloa now states that treatment consists of anti-inflammatory medication, Mobic, in addition to medication for blood pressure and diabetes. Occasionally the patient states that he does some water exercises. There was no other treatment for his pain.”[28]
[27] DCB 20
[28] DCB 21
42 Mr O’Brien set out the following opinions:
“Current physical signs are indeed subjective and relate very much to some mild loss of thoracolumbar movement and some lower thoracic tenderness. But signs would suggest some symptomatic thoracic and lumbar spondylosis.
…
It is now difficult on the basis of the patient’s history to confirm injury occurring to both the thoracic and lumbar spine at the time of the described fall.”[29]
I would conclude that the patient’s employment is a significant contributing factor to both the thoracic and lumbar symptoms.
… there is only symptomatic treatment predominantly with analgesic medication. The patient also does report some temporary relief from water exercises, a situation which I think could form part of the patient’s own self management.[30]
…
The patient, I have no doubt will not return to his previous employment. In fact this patient has now been on a Disability Pension for some time and clearly will not return to any form of gainful employment. He can certainly be regarded as totally and permanently incapacitated. He has total impairment of function of both thoracic and lumbar spine.
…
On the available evidence I would consider that liability should be accepted for the thoracic spine as the patient now certainly describes the lower thoracic area as a source of ongoing pain and the radiological abnormality of T11 would be compatible with the described fall.”[31]
[29] DCB 22
[30] DCB 23
[31] DCB 23
43 It is clear that Mr O’Brien was of the opinion in 2008 that the injury to the thoracic and lumbar spine was caused by the accident at work as described by the plaintiff. Mr O’Brien accepts that the plaintiff properly describes his level of pain and whilst surgery is not indicated, the ongoing pain relief medication and water exercises are a reasonable course for the plaintiff to take by way of treatment.
Mr Michael J Dooley
44 The plaintiff was referred to Mr Michael Dooley, orthopaedic surgeon, for examination on 28 March 2011. Mr Dooley reported on 29 or March 2011 to the defendants’ solicitors.
45 Mr Dooley took a history that the plaintiff was taking Panadol for his pain. He also noted that the plaintiff was taking antidepressant medication and used medication to assist in sleep. He noted that the plaintiff experienced pain at night.[32] Mr Dooley, on examination, found that there was tenderness of the spine from the mid thoracic to the lower lumbar level. He noted the radiology results and the compression fractures in the T7 and T11-T12 vertebrae.
[32] DCB 26
46 Mr Dooley was of the following opinion:
“On balance, I believe it is unlikely that the compression fractures noted
on radiological investigation occurred in the fall.
…
While there is no doubt that a proportion of Mr Ulloa’s ongoing pain relates to the organic injury, I believe that he has had a psychological reaction to injury and/or pain that does influence his ongoing symptoms.
…
Mr Ulloa’s employment has been a significant contributing factor to his injury.
…
Mr Ulloa’s ongoing symptoms relate both to the organic injury sustained and to his psychological reaction to his injury, pain and subsequent dismissal from work.
…
From an orthopaedic point of view alone, I would expect Mr Ulloa to note some ongoing intermittent thoracolumbar spine pain.”[33]
[33] DCB 27 and 28
47 Finally, Mr Dooley was of the opinion that the plaintiff was capable of carrying out some light physical work and clerical duties. In respect of his work capacity, Mr Dooley stated that the plaintiff would need to avoid work that involved heavy physical activity or a lot of bending and lifting. He would have difficulty working at height.[34]
[34] DCB 27 and 28
48 In summary, Mr Dooley accepts that the plaintiff is suffering pain as a result of the injury to his thoracolumbar spine. Mr Dooley, however, is of the opinion that the plaintiff has a residual work capacity as light duties or clerical duties.
The Consequences of the Injury for the Plaintiff
49 I have read the affidavits of the plaintiff sworn on 20 July 2010 and 7 November 2011 in support of his application.
50 I have carefully considered the evidence of the plaintiff, which was tested by Mr Myers, for the defendants, in cross-examination.
51 I find that the plaintiff was a straight forward witness who gave a good account of the consequences of the injury to him. He did not embellish or exaggerated the extent of his difficulties. The plaintiff presented as a person who was trying to do his best under the circumstances in which he now finds himself. He is not properly described as a stoic, but more as someone who is resigned to his condition.
52 The plaintiff’s employment with the first defendant was terminated on the basis of an allegation that he was involved in theft of money from a work colleague on 19 November 2004. The plaintiff denies the allegation of theft. The plaintiff’s employment was terminated formally by a letter dated 3 December 2004.[35] The relevance of the plaintiff’s termination of employment is not whether the plaintiff was guilty of theft. The defendants puts forward the termination on the basis that the plaintiff did not cease work because of injury but rather that his employment had been terminated. The reason for the termination was not relevant.
[35] DCB 35
53 I find that the consequences that I am satisfied the plaintiff has suffered as a result of the injury to his thoracolumbar spine are as follows:
Pain
•
I find the plaintiff continues to experience widespread pain, particularly in his mid to lower back region.[36]
•
I accept that the plaintiff has the need to use a walking stick on occasions when the pain in his back is really strong.37 38
•
After the plaintiff’s employment was terminated by the first defendant, he continued to suffer pain whilst receiving Centrelink payments. These pains were in the middle of his back and downward.[39]
[36] PCB 7, paragraph 10
[39] T 24, L7 – 13
54 The plaintiff stated that he also had pain whilst driving a motor vehicle. In evidence, he said as follows:
Q: “How does your body speak to you to tell you not to drive any
more?---A: Through pains. Q: Where are the pains?--- A: In my back. It’s continuous. Q: Does driving for longer times have any effect on the pains in your
back?---A: Yes, it tires me significantly and it makes it harder for me to
actually get out of the vehicle afterwards.Q: Why is it harder for you to get out of the vehicle afterwards?--- A: Because there are times when my – my legs seem to lock up
because of my back.”[40][40] T 29, L6 – 15
Sleep
55 The plaintiff gave evidence that he experienced disturbed sleep due to pain and worrying.[41] Independently of his back injury, the plaintiff had been diagnosed with sleep apnoea. He has had surgery to his nose to correct the condition of sleep apnoea. In his evidence, the following exchange occurred:[42]
[41] PCB 8, para 18
[42] T 26, L17 – 29
Q:
“When you were asked before questions about sleep apnoea you responded that you had trouble with sleep. Do you have trouble sleeping now?---
A: I don’t know. I can’t sleep. I take pills that clam me down but I
don’t know precisely what it is.Q: Does your back condition have any effect on your sleep?--- MR MYERS:
I object to this. That is a leading question, your Honour. He got the
other answer.
HIS HONOUR:
He says he doesn’t know, “I can’t sleep”.MR GORTON:
Q: How do you get through the night?--- A: Without pills I sleep two or three – or maximum three hours. Q: What happens after the three hours?--- A: I’m awake. Q: What do you do then?--- A: I look at TV.”
56 The part of the plaintiff’s evidence referred to above at first would tend to indicate that the plaintiff did not know why his sleep was interrupted. However, on the whole of the evidence, I am satisfied that his sleep is disturbed and disrupted by pain to his mid and lower back.
57 In his reporting to various medical practitioners, he consistently states his sleep is interrupted due to pain.
58 Mr Steedman took a history that the pain in the back was constant and then noted “sleep pattern is adversely affected”.[43]
[43] PCB 108
59 Dr Stephen Stern noted in his report: “His sleep is disturbed by pain”.[44]
[44] DCB 15
60 Mr Michael Dooley took a history that the plaintiff suffered ongoing pain and noted that he “uses medication to assist his sleep”.[45]
Medication
[45] DCB 26
61 I find that the plaintiff’s sleep is disturbed as a result of the pain suffered in his mid and lower back. The disruption to his sleep is significant and has a severe impact on his enjoyment of life generally.
62 I accept that the plaintiff continually suffers pain in his mid to lower back on a daily basis. There are times when the plaintiff’s level of pain is much higher than others. Over the period since his injury to now, the plaintiff has had pain medication in the form of Panadeine Forte and Panadol to assist in his symptoms.
63 The plaintiff gave evidence that initially he had very little medication for treatment of his pain symptoms.[46] The plaintiff stated that he took Panadeine Forte to assist in the control of his pain. In evidence, he was asked the following:
[46] T 8, L11
Q: “She says this? ‘He has been treated conservatively, rest, heat,
analgesics.’ Is that correct?---A: Yes, Panadeine Forte. Q: You haven’t been taking Panadeine Forte consistently since 2004,
have you?---A: Well, no because it upsets my stomach.”[47] [47] T 15, L25-29
64 In his evidence, the plaintiff also stated that he takes Panadeine Forte when he is in pain. The following evidence was given:
Q: “All right. Can you tell me what other medication you’re taking and
what conditions the medication is for?---A:
I’m taking medication for blood pressure, for my heart. I’ve got tablets for angina. Panadeine Forte that the doctor prescribed not too long ago but I try not to take that one too much.
Q: When you say not too much, do you take say one tablet a week of
Panadeine Forte?---A:
Well, in theory I should be taking it every four hours, and some days I do have to take it every four hours but then I – when the pain ceases I stop.
Q: Do you sometimes not take it for a week or two weeks?--- A: Very possible. Q: Since this accident in 2004 you’ve gone through long periods of
time, I suggest, without taking any Panadeine Forte at all?---A: That’s true.”[48] [48] T 22, L14- 28
65 It was submitted during the course of the application that the plaintiff’s general practitioner, Dr Conejera, was not very supportive of him. It is Dr Conejera who is prescribing Panadeine Forte tablets for the plaintiff and also Pariet tablets to assist in the stomach symptom control for the plaintiff.[49]
[49] PCB 114
66 Mr John O’Brien took a history from the plaintiff that he was being treated with the anti-inflammatory medication Mobic in October 2008.[50] Mr Michael Dooley took a history from the plaintiff that in March 2011, he was taking Panadol for pain relief.[51]
[50] DCB 21
[51] DCB 26
67 I find that the plaintiff is not consistently taking large amounts of medication, from the time of his injury until the present time. He does need and has had prescribed Panadeine Forte for pain control. He impressed me as a person who would only take medication for pain relief when it was absolutely necessary. I find that the necessity to take pain relief is a very considerable consequence for him.
Treatment
68 The plaintiff has had very little active treatment for his back injury. The neurosurgeon, Gautam Khurana, has recommended for the plaintiff to have ongoing physiotherapy treatment to assist in core muscle strengthening exercises. The plaintiff has not had that treatment. This recommendation was made to the general practitioner but for some reason that has not been followed up.
69 The plaintiff was very frank about this issue in his evidence. When he was asked about physical treatment immediately after his time off work following the injury, he stated as follows:
Q: “All right. Then after that you continued to have, I suggest, no
physical treatment?---A: That’s right, I did not undergo any physical treatment because I waited for a while.”[52][52] T 10, L19 – 21
70 The plaintiff later conceded that he had no “hands on” treatment concerning his back since 2007.[53]
[53] T 17, L7 and 8
71 The plaintiff’s ongoing treatment is limited to water exercises and medication, which I have previously referred to. The plaintiff stated that he also walks for exercise.[54]
[54] T 16, L22 – 24
72 The ongoing treatment for the plaintiff is not a significant consequence for him in terms of disruption to his daily routine, hospitalisation or the like. Such an approach is consistent with the medical opinions of doctors who are all in agreement that there is nothing physically that can be done in terms of surgery for the plaintiff. The only thing that the plaintiff is not doing is physiotherapy treatment which has been recommended to him, but not arranged by his general practitioner.
Home Activities
73 The plaintiff states that he is no longer able to do the gardening at his home.[55] In his evidence, the following exchange took place:
[55] PCB 108
Q: “You – do you have a garden?--- A: Well, my wife takes care of the garden. Q: So the unit has a garden does it?--- A: Yes. Q: Is there – sorry?--- A: It’s a small one. Q: So is there any lawn?--- A: Outside of the house, yes. Q: Who mows the lawn?--- A: I used to cut it but now I pay a Maltese gentleman to do it. Q: When did you stop mowing your own lawn?--- A: Well, he started cutting it three months ago but there was also a
time a year ago that he was cutting the lawn.”[56][56] T 21, L6-15
74 The plaintiff gave evidence that he and his wife lived in a unit and that the garden was relatively small. The lawn cutting on the nature strip is a limited activity. I do not find that these limitations on the plaintiff are of great significance to him.
Work
75 The plaintiff has been certified as eligible for the Disability Pension.[57] The last employment the plaintiff had after the accident was a six-week period working in a cheese factory. He stopped working in that employment because the work was too heavy. The plaintiff has not worked since that time.[58]
[57] PCB 7 paragraph 16
[58] PCB 7, at paragraph 15
76 In his evidence, he stated that he had tried to get jobs through Centrelink and its agencies but was unable to do so. The date of his certification for disability pension is unclear but since that time he has not tried to get employment.
77 In the interim period, the plaintiff, whilst on the disability pension, has been actively involved in his church activities. He gave evidence that on occasion he had attended the church four days a week. Some of his activities involved driving fellow members of the church to and from events. These trips involved him driving a bus which was capable of taking approximately twelve passengers. The road trips would take at most forty minutes. The church- related work was either that of praying, preaching or driving other church members to and from events.
78 I accept and find the loss of ability by the plaintiff to engage in paid and regular employment is a significant loss to him. The evidence that he is prepared to go and do volunteer work as best he can indicates a person who needs and enjoys regular useful contact with other people and, because of his injury, he is unable to engage in paid employment. The plaintiff has done the best he can in replacing paid employment with unpaid volunteer work for his church. In his evidence he stated that in the last couple of months this year he was not able to continue with the driving work due to the pain and I accept that that is the case. I regard the loss of paid employment as a significant consequence to him on a pain and suffering basis.
Conclusion
79 I consider in the present case that the plaintiff has proved to the requisite degree that he has suffered from persistent pain to his mid and lower back. The combination of resorting to painkilling medication, his inability to work, the inability to undertake all of the usual social and domestic activities, and the interference to his sleep patterns due to pain, all amount to serious consequences for him. I consider that when gathered together, these consequences amount to what can be fairly described as being more than significant or marked and being at least very considerable pain and suffering consequences for him.
Loss of Earning Capacity
80 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing he has a loss of earning capacity of 40 per cent or more pursuant to s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently: s.134AB(38)(e)(ii). 81 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 82 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
83 “Without injury” earnings consist of the gross income “expressed at an annual rate” that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
84 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
85 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
86 I find that the appropriate “without injury” earnings figure is $56,924 per annum.[59] This figure is the income earned by the plaintiff immediately before his injury at Holden.
[59] PCB 140
87 I find that the plaintiff has not worked since his employment in the cheese factory at Coburg. I find that the last employment that the plaintiff applied for was a cleaning-type job in 2005.[60] In the circumstances of this case, it is not surprising that the plaintiff has not sought any further employment because he has been certified for the Disability Pension.
[60] T 16, L14 – 19
88 The medical evidence and opinion in relation to the plaintiff’s ability to be employed is almost unanimous. Mr Steedman, in his report dated 11 October 2011, states:
“I feel sure he has no capacity for return to work currently or in the
foreseeable future.”[61]
[61] PCB 109
89 Professor Brand was unable to give an opinion as to the capacity for work now or in the future in relation to the plaintiff.[62]
[62] PCB 111, 112
90 Mr John O’Brien, who assessed the plaintiff on behalf of the defendants, stated as follows:
“The patient certainly describes a moderate disability indicating that his general physical activities are quite restricted. The patient I have no doubt will not return to his previous employment. In fact this patient has now been on a Disability Pension for some time and clearly will not return to any form of gainful employment. He can certainly be regarded as totally and permanently incapacitated. He has total impairment of function of both the thoracic and lumbar spine.”[63]
[63] DCB 23
91 Mr Michael Dooley, orthopaedic surgeon, reported on 29 March 2011 that in his opinion:
“… Mr Ulloa would be capable of carrying out some light physical work
and clerical duties.”[64]
[64] DCB 27
92 It is to be noted that Mr Ulloa has had the assistance of an interpreter during the course of this proceeding. I note that on a number of the medical reports he was also assisted by a professional interpreter. I am at a loss to understand what clerical duties the plaintiff could perform, given his age and level of education. He has very limited ability to speak and read English. On the issue of light physical work that the plaintiff could perform, I do not accept Mr Dooley’s opinion on this issue and prefer the opinions of Mr O’Brien and Mr Steedman.
93 In conclusion, I find the plaintiff’s “after injury” income earning capacity has been destroyed.
94 I conclude that the plaintiff has suffered a loss of earning capacity which is productive of a financial loss of more than 40 per cent per annum. This finding satisfies the statutory test as outlined above and is a permanent state for the plaintiff. The plaintiff has been in a position where he cannot work from approximately 2005 to the present time and into the foreseeable future.
Conclusion
95 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for bodily injuries, for pain and suffering and loss of earning capacity which have arisen out of his employment with the first defendant.
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T 8, L6 – 16
T 28, L11 – 15
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